Bernard Finel argues that we have done a poor job of formalizing rules to deal with the fight against international terrorists.
Few, even today, question the legitimacy of the U.S. campaign to remove the Taliban. But has this case set a broader precedent? And if so, what are the parameters of this precedent. Does any country unilaterally have the right to engage in regime change if they are struck by a terrorist attack launched from another country? Must the victim demonstrate that the host country is actually complicit in the attack in some way? Must the victim seek out some sort of collective legitimization before resorting to military action? Can an unwilling host country avoid retaliation if it can demonstrate that it is trying to eject the terrorist organization.
This is not an academic exercise. Rather, these issues reflect fundamental challenges in current U.S. counter-terrorism policy. The United States has relied on targeting killings of AQ operatives in numerous countries. Is this policy legitimate? Could the Chinese, for instance, legitimately target Tibetan activists in the United States by claiming that those activists were inciting violence in China? What are American rights vis-Ã -vis AQ bases in Pakistan. Does the Afghan precedent suggest that the United States could legally engage in regime change in Pakistan in retaliation? If not, why not?
As a practical matter, the answer to each of these questions is that countries can do whatever they want so long as they can get away with it. The United States and China will have more latitude in these matters than, say, Turkey.
But it’s more complicated than that. As Finel’s colleague, Jim Ludes, points out
there is value in establishing rules ahead of time and then following them.
If you believe the conflict will endure for decades, it makes sense that you would seek to institutionalize, both domestically and internationally, the legal authorities and procedures for prosecuting this war. That was the genius of the 1947 National Security Act, the creation of NATO, the United Nations, the World Bank, and the complex of international institutions and laws that helped us win the Cold War in 1989.
We are, at our core, a nation of laws. If our laws aren’t adequate to the challenges at hand, then they need to be revised, but they can not—and must not—be ignored. Nor can we afford to let terrorists go free. Our concern over due-process is not simply about the rights of detainees, it is about preserving our identity, defending our way of life, and defeating the terrorists.
Indeed. While there’s some short-term advantage to the ad hoc, make-it-up-as-you-go approach that the Bush Administration has taken, it’s damaging in the longer term. Not only does it undermine our moral authority in trying to hold others to the rule of law but it’s problematic on the domestic front, too. Those who have been perfectly happy to trust Bush to do what he felt best to protect us will likely not be so sanguine if he’s succeeded by a President Obama.